Com. of Pa. v. Diaz, 1811 EDA 2016

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY DUBOW, J.
Citation183 A.3d 417
Parties COMMONWEALTH of Pennsylvania, Appellant v. Miguel DIAZ
Docket NumberNo. 1811 EDA 2016,1811 EDA 2016
Decision Date23 March 2018

183 A.3d 417

COMMONWEALTH of Pennsylvania, Appellant
Miguel DIAZ

No. 1811 EDA 2016

Superior Court of Pennsylvania.

Submitted February 13, 2017
Filed March 23, 2018
Reargument Denied May 30, 2018

Matthew D. Weintraub, District Attorney, and Karen A. Diaz, Assistant District Attorney, Doylestown, for Commonwealth, appellant.

Stuart M. Wilder, Doylestown, for appellee.



The Commonwealth appeals from the May 12, 2016 Order entered in the Bucks County Court of Common Pleas granting Appellee, Miguel Diaz, a new trial based on numerous ineffective assistance of counsel claims pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 – 9546. After careful review, we conclude that the PCRA court properly granted Appellee a new trial because Appellee's trial counsel was per se ineffective in his handling of Appellee's need for a translator at trial. We, therefore, affirm the PCRA court's grant of a new trial.

The Honorable Robert O. Baldi, who presided over Appellee's PCRA proceedings below, has authored two Opinions, which include the relevant factual and procedural

183 A.3d 419

history as well as 104 Findings of Fact ("FF"). See PCRA Court Opinion (Opinion I), filed 5/12/16, at 1–26, 33–39; PCRA Court Pa. R.A.P. 1925(a) Opinion (Opinion II), filed 7/22/16, at 1–8.

We base this summary of the facts upon Judge Baldi's findings of facts. In May 2006, fourteen-year-old E.S. told a classmate and later a school guidance counselor that Appellee, her stepfather, had been sexually abusing her for four years with her mother's knowledge and cooperation. The police arrested Appellee.1

Appellee retained the services of Gregory Noonan, Esquire, and John Walfish, Esquire, both of Walfish & Noonan LLC. Over the course of their eight-month representation of Appellee, Attorney Noonan met with Appellee for a total of less than one hour. Attorneys Noonan and Walfish failed to consult with one another at any point prior to trial, and each assumed that the other would be responsible for critical components of proper trial preparation.2 Opinion II at 14–15.

On the morning of the trial and fifteen minutes before the court called the case, Attorney Walfish met his client for the first time. Appellee informed Attorney Walfish that Appellee needed a Spanish–English translator to help him understand the trial proceedings.

Since Attorney Walfish had not consulted with Attorney Noonan about Appellee and Attorney Walfish had spent only fifteen minutes with Appellee, Attorney Walfish did not recognize the extent to which Appellee needed a translator to understand the criminal proceedings.

Attorney Walfish requested a translator and the trial court said that one was not available for the first day of trial. Attorney Walfish then mistakenly informed the trial court that Appellee only need a translator when Appellee testified. The trial court judge then promised not to move forward into testimony until the next day when the court would provide a translator for Appellee. Op. I, FF # 71–73.

Despite the judge's promise, the trial court began the trial that day. The lawyers selected a jury and made opening statements to the jury. Most significantly, the Complainant, the focal point and main witness of the Commonwealth's case, testified fully. Attorney Walfish, not recognizing Appellee's need for a translator, stayed silent, and did not object, as the case proceeded without a translator. Beginning the second day, the court provided a translator

183 A.3d 420

to Appellee for the remainder of the trial. Op. I, FF # 75–76.

The jury convicted Appellee of Rape of a Child, Rape of a Person Less than 13 years of Age, Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of a Child, as well as Conspiracy to commit each of those offenses.

When Appellee returned to court for his hearing to determine if he was a Sexually Violent Predator and subsequent sentencing, the trial court noted the presence of a translator because Appellee does "not understand the proceedings well enough to participate in them without an interpreter." Op. I, FF # 77.

The trial court ultimately sentenced Appellee to twenty to forty years' incarceration in a state correctional facility.

Appellee filed a direct appeal to this Court, raising claims that, inter alia , the trial court erred in failing to provide a translator on the first day of trial. This Court, however, found that Appellee waived his right to challenge the trial court's decision to proceed without a translator because Attorney Walfish failed to object during trial to the trial court's decision. Commonwealth v. Diaz , No. 3243 EDA 2012, unpublished memorandum at 5 (Pa. Super. filed October 1, 2012).

Appellee subsequently filed a PCRA Petition, alleging numerous claims of ineffective assistance of counsel. Among the many errors supporting Appellee's ineffectiveness allegations, Appellee asserted that Attorney Walfish failed to represent Appellee adequately due to, inter alia , his failure to secure a Spanish–English interpreter and object to the court's decision to hear testimony on the first day of trial despite the trial court's pledge not to do so.3

After hearing testimony, the PCRA Court made thirty-four findings of fact that are specific to Appellee's translator claim.4 See Op. I, at 33–39. Most significantly, the PCRA court concluded that Appellee "did not understand what was occurring during the pre-trial motion proceedings, jury selection or opening arguments and did not understand about half of the complainant's testimony." Op. I, FF # 92.

The PCRA court based this conclusion on, inter alia , testimony about Appellant's language capabilities, education, and use of language. Op. I, FF # 78–87, 94–100.

The PCRA Court also relied upon the testimony of Raymond McConnie, an expert on Appellee's ability to comprehend English. Mr. McConnie testified that Appellee's language proficiency in English "was not adequate to follow what was happening at trial without an interpreter." Op. I, FF # 102. Mr. McConnie also opined that "stress at trial tends to dissipate a foreign language speaker's extant ability to understand the language spoke at trial; and as a result, [Appellee] had significant difficulty understanding what happened at trial, and communicating with counsel at trial, when he did not have an interpreter." Id.

In addition to the translator claim, the PCRA court identified a "multitude of deficiencies [that] ranged from things that might be characterized as inattentive or negligent to things that were breathtakingly shocking." Opinion II at 11. Because of these findings and others, the PCRA

183 A.3d 421

court granted Appellee's PCRA Petition and ordered a new trial.

The Commonwealth filed a timely appeal.

On appeal, the Commonwealth raises nine claims, each addressed to one of the grounds for a new trial identified by the PCRA court. Since we find that Attorney Walfish's handling of the translator issue provided sufficient ineffectiveness to entitle Appellee to a new trial, we need not address the Commonwealth's other issues.

The Commonwealth sets forth the translator issue as follow:

Did the PCRA court err in granting relief by finding prior counsel was ineffective for failing to secure [a translator] during attorney consultation with Appellee, at trial, and during subsequent interviews with authorities, where Appellee failed to meet his burden and the record reflects that Appellee spoke, understood[,] and comprehended English, and, in fact, admittedly advised counsel that he spoke and understood English?

Commonwealth's Brief at 5.

When reviewing the propriety of an order pertaining to PCRA relief, we consider the record "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc ) ). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014). However, we afford no such deference to the post-conviction court's legal conclusions. Id. We thus apply a de novo standard of review to the PCRA Court's legal conclusions. Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244 (2011). Further, an appellate court is not bound by the rationale of the trial court and may affirm on any basis if the record supports it. In re Jacobs , 15 A.3d 509 (Pa. Super. 2011).

With our standard of review in mind, we turn to the Commonwealth's challenge to the PCRA Court's finding regarding the need for a translator. Although the Commonwealth purports to raise a single issue, the challenge is comprised of two distinct claims, which we will address in turn.

First, the Commonwealth...

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